Case Law On Trial: 1971 to 1995

Find out which cases have been getting the most votes for inclusion in our special Anniversary Edition, to celebrate ICLR’s sesquicentenary.

We’ve been reporting cases for 150 years and now we’re putting them all on trial. Which cases made the biggest difference in the development of the common law? Which are the landmarks that really stand out? We need you to give us your verdict.

This fourth voting period, 1971 to 1995, saw a rapid growth in the development of judicial review and the enforcement of rights under European law. But the cases currently getting the most votes are not in either of these areas.

Top of the ranking at present (with 20% of the votes cast so far) is Caparo Industries plc v Dickman[1990] 2 AC 605, HL(E) which is all about negligence. Although at first blush the headnote suggests the case is concerned with the question whether auditors of a company’s account might owe a duty of care to those, whether shareholders or otherwise, contemplating investing in the company, the case is actually memorable for its refinement of the test to be applied, in a much wider range of circumstances, as to whether a duty of care might arise. The essential passage is in the speech of Lord Bridge at pp 617-619 which begins:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that thereshould exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

Next in order of popularity (with 19% of the vote) is R v R[1992] 1 AC 599, HL(E) which effected a major change in the criminal law relating to rape, by abolishing the existing presumption that a wife was deemed to have consented irrevocably to sexual intercourse with her husband. If lack of consent could be proved, a husband could now be convicted of the rape of his wife. The case is regarded as a high water mark of judicial activism, effectively an example of judge-made legislation, because it didn’t merely “discover” the common law as it must be supposed to be, or clarify it in some way to enable it to be applied to new circumstances; but instead actually repealed an existing common law rule and created a new one in its place. The fact that Parliament could at any time have legislated to the same effect and failed to do so may have justified the development, but does not prevent its being, in a sense, a dangerous precedent.

The subject of marital rape and other types of sexual assault in the context of family law disputes, where the issues and remedies are likely to be much less clear cut, and certainly not confined to a binary question of innocence or guilt in the shadow of criminal sanctions, is discussed by Lucy Reed on her Pink Tape blog, in Does it matter what we call it?Recommended reading.

Third on this list this month (with 16% of the vote) is Pepper v Hart[1993] AC 593, HL(E) which is concerned more directly with legislation, in particular how the court should approach the question of interpreting it. This case changed the law by relaxing the existing and inflexible rule excluding any reference to Parliamentary material as an aid to statutory construction, so as to permit such reference where legislation was ambiguous or obscure or led to absurdity.This was held not to amount to any questioning or impeaching of the proceedings in Parliament or otherwise to contravene article 9 of the Bill of Rights 1688. the case has often been cited, and relied upon, which suggests that Parliament is perhaps not always as clear as it means to be, notwithstanding the efforts of parliamentary draftsmen, or draftspersons, whose clarity is always subject to the whims of amendment by legislators before reaching the statute book.

Finally, in the runner-up position (not far behind with 14% of the vote) is the landmark case on Community law, R v Secretary of State for Transport, Ex p Factortame (No 2)[1991] 1 AC 603, ECJ and HL(E). This was the case in which the Court of Justice of the European Communities ruled that national law may need to be set aside if it blocked access to interim relief which was available under Community law. The case was referred by the House of Lords, which subsequently ruled in favour of granting interim relief in the instant case, which was all about fishing rights. The No 2 was not the last of it. The Factortame litigation continued for the rest of the decade and reached at least No 7 before it was done with.

This month there have also been some nominations of cases within this period not on the list, namely (with reasons given):

Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 (This is a seminal case on restitution, money had and received and change of position)

Attorney General’s Reference No 3 of 1994 [1998] AC 245 (The House of Lords carefully examined the existing state of the law of homicide, [in relation to a foetus] and declined to extend it to cover the facts of the case.)

McGhee v National Coal Board [1973] 1 WLR 1 (This was the case that really started the line of judicial thinking about causation in negligence cases, which reached its zenith (one might think, nadir) in Fairchild v Glenhaven Funeral Services. It deserves to be recognised, for all its malign consequences!)

The voting for this period is still open until the end of the month, so if you haven’t already chosen a case, now’s the time to do so, here. Meanwhile, keep an eye on Twitter (via hashtag #iclrvote) and by all means post about your own choice (using the social media buttons on the last page of the voting process).